GWENDOLYN SMITH v. TRANSIT AUTHORITY OF RIVER CITY; HON. GRANT ROARK, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD
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RENDERED: May 5, 2006; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2005-CA-001216-WC
GWENDOLYN SMITH
v.
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS’ COMPENSATION BOARD
ACTION NOS. WC-98-94968, WC-00-98724, and WC-03-72961
TRANSIT AUTHORITY OF RIVER
CITY; HON. GRANT ROARK,
ADMINISTRATIVE LAW JUDGE;
AND WORKERS’ COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING IN PART, VACATING IN PART AND REMANDING
** ** ** ** **
BEFORE:
GUIDUGLI, McANULTY, AND SCHRODER, JUDGES.
McANULTY, JUDGE:
Gwendolyn Smith petitions for review of a
Worker's Compensation Board opinion, which affirmed an opinion,
order and award of the Administrative Law Judge (ALJ).
Smith
had been injured in the course of her employment as a bus driver
several times.
The ALJ denied claims from 1998 and 2000 on
statute of limitations grounds and limited the award for an
August 2003 injury to permanent partial disability benefits.
Smith disputes the application of the statute of limitations.
She further argues that she is due additional temporary total
disability (TTD) benefits for time she was taken off work from
February 18, 2003, through July 28, 2003, and again for time she
was off work from September 2003, until February 7, 2004, due to
pain from her most recent injury.
The function of further review of the Workers’
Compensation Board in this Court is to correct the Board only
where we perceive that the Board has overlooked or misconstrued
controlling statutes or precedent, or committed an error in
assessing the evidence so flagrant as to cause gross injustice.
Western Baptist Hospital v. Kelly, 827 S.W.2d 685, 687-88 (Ky.
1992).
We affirm the Board in part, but we remand to the ALJ
for additional consideration of entitlement to TTD benefits for
Smith’s August 2003 injury.
Smith believes the statute of limitations was tolled
by the payment of benefits on her 2000 injury because it was
merely a continuation or recurrence of her 1998 injury and not a
separate injury as such.
Smith also believes that tolling of
the statute of limitations occurred when appellee Transit
Authority of River City (TARC), reported the incorrect date in
its notification to her that it had ceased paying voluntary
income benefits.
Tolling of the statute of limitations may occur where
the employer fails to meet its statutory obligation to report
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the cessation of payments under KRS 342.040.
v. Rogers, 765 S.W.2d 579 (Ky. App. 1988).
City of Frankfort
We agree with the
Board that the exception does not apply in this case, however,
because TARC’s defective report did not deprive Smith of notice
concerning the need to file a claim before the statute of
limitations period ended.
(Opinion p. 12).
We entirely agree
with the Board’s assessment that “any misunderstanding created
by the notice would have suggested the need to file the claim
earlier rather than later.”
Id.
Smith’s attempt to avail
herself of the policy in Rogers is not warranted under the
letter or spirit of its holding.
The Board concluded that its result regarding the
statute of limitations rendered the remainder of Smith’s
assertions moot.
The Board stated:
Given that the single Form 101 alleging the
two injuries was filed more than two years
after May 26, 2000, it is of no consequence
whether TARC’s voluntary payment of income
benefits during that time period related to
the 1998 or the 2000 work-related incidents.
In either case, Smith’s claim is barred by
the statute of limitations. She did not
file her application for benefits regarding
the 1998 injury until March 28, 2003, more
than two years after TTD benefits were
terminated on May 26, 2000.
Appellant has failed to demonstrate why the Board’s analysis is
not correct.
We affirm as to the statute of limitations.
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Next, Smith argues that the Board erred in determining
that TARC substantially complied with the requirement to timely
file a Form 111 notice of claim denial or acceptance, pursuant
to 803 KAR 25:010 § 5.(2)(a), and a “special answer,” pursuant
to 803 KAR 25:010 § 5.(2)(d).
Smith argues that the language of
the regulations cited above is mandatory according to KRS
446.010(29), and is clear and unambiguous.
She asserts that
where language is mandatory, substantial compliance is not an
option.
Thus, she believes that TARC’s failure to comply
results in all the allegations of the application for relief
being deemed admitted pursuant to 803 KAR 25:010 § 5.(2)(b).
TARC did not file a Form 111, notice of claim denial
or acceptance, as required by 803 KAR 25:010, § 5(2)(a), until
ten days after expiration of the 45 day period set forth in the
scheduling order.
The real issue in this case is TARC’s failure
to file a “special answer” under 803 KAR 25:010, § 5(2)(d),
since that is where the special defense of the running of the
statute of limitations is to be asserted.
5(2)(d)2.g.
See 803 KAR 25:010, §
TARC did plead the special defense of the running
of the statute of limitations within the 45 days set forth in
the regulation, except that it was by a motion to dismiss rather
than in a pleading denominated a “special answer.”
The Board reasoned, nevertheless, that TARC’s filing
of a “Motion to Dismiss Claim” asserting the defense of the
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statute of limitations within 45 days of the scheduling order
was the equivalent of a special answer.
The Board cited the
fact that the regulation does not prescribe a particular form
for the special answer.
Thus, it concluded the substantial
compliance by motion was sufficient to give notice of claim
denial.
We affirm the Board’s reasoning on this issue, as it
conforms to common sense and upholds the purposes of the
regulation in question.
It is correct to say that the
provisions of 803 KAR 25:010, § 5(2)(a) are mandatory.
The
Kentucky Supreme Court said just that in an opinion issued after
the Board’s decision in this case, Gray v. Trimmaster, 173
S.W.3d 236, 240 (Ky. 2005).
The Court therein observed that the
purpose of requiring compliance with the regulation is “to
facilitate the prompt and orderly resolution of workers’
compensation claims.”
Id.
We agree with the Board that since there is no
requirement that such a pleading be prepared on a particular
form, TARC’s filing of its “Motion to Dismiss Claim” may be
considered a special answer.
It served the purpose, stated in
Gray, that claims be resolved in a prompt and orderly fashion.
There is no reason to hold otherwise.
On the other hand, the
Board rightly states that a contrary holding would elevate form
over substance.
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Gray is distinguishable because the employer in that
case failed to respond in any way to the claim within the 45
days.
In the case at bar, Smith had early notice of TARC’s
intention to raise the statute of limitations defense and notice
within that same motion that TARC denied the other allegations
of the application for benefits.
Thus, we affirm the Board’s
determination that TARC was in substantial compliance with the
requirement of 803 KAR 25:010, § 5(2)(d), and that TARC’s
failure to timely comply with the Form 111 requirement of 803
KAR 25:010, § 5(2)(a) was of no consequence.
Smith’s request for additional TTD benefits for
February 18, 2003, through July 28, 2003, was barred by the
statute of limitations, as stated above.
Smith also sought TTD
benefits for the period from October 2003, through February 7,
2004, following her most recent injury.
They were denied by the
ALJ on the basis that Smith returned to work and was able to
perform her job despite Dr. Villanueva’s opinion that she could
not do so without first undergoing surgery on her back.
The
Board affirmed this result.
The opinion does not make clear why Smith’s return to
work in February 2004, precludes her receiving TTD benefits from
September 2003, through February 7, 2004.
Indeed, the ALJ
failed to make findings in accordance with the statutory
standard for TTD benefits.
TTD is defined in KRS
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342.0011(11)(a) as “the condition of an employee who has not
reached maximum medical improvement from an injury and has not
reached a level of improvement that would permit a return to
employment.”
The Board states that Smith “was taken off work from
September 2003 through February 7, 2004.”
The ALJ denied TTD
benefits for this period because Smith went back to work despite
her doctor’s recommendation that she could not do so without
having surgery.
Smith stated in her deposition that payment for
her surgery was denied and she was running out of sick leave
time, so she returned to work for fear of losing her job.
The ALJ did not analyze the appropriateness of TTD
benefits for the period from September 2003, through February 7,
2004, based on the statute.
The ALJ made no findings as to
maximum medical improvement or the time when Smith reached a
level of improvement that would permit her to return to
employment.
While Smith was able to return to work on February
7, 2004, we observe no findings as to whether she could have
worked earlier than that following her August 2003 injury.
The
Board’s opinion and the recommendation of Dr. Villanueva
indicate that she was taken off work during that time.
Because
the ALJ overlooked the statute’s dictates, we remand for a
determination by the ALJ as to TTD using the definition in KRS
342.011(11).
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For the foregoing reasons, we affirm the Board in
part, and vacate in part and remand for a determination of the
availability of TTD benefits following Smith’s August 2003
injury.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
James D. Howes
Howes & Paige, PLLC
Louisville, Kentucky
R. Allen Button
Whonsetler & Johnson
Louisville, Kentucky
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